United States District Court, D. Minnesota
Jennifer G. Mrozik, HOGLUND, CHWIALKOWSKI & MROZIK, PLLC,
A. Marentette, Assistant United States Attorney, UNITED
STATES ATTORNEY'S OFFICE, for defendant.
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
R. TUNHEIM, CHIEF JUDGE.
Ben Kaeding filed the present action alleging that Defendant
Acting Commissioner of Social Security (the
“Commissioner”) took an adverse action in the
dismissal of his application for disability insurance
benefits. (Compl. ¶ 3, Apr. 5, 2016, Docket No. 1.) Upon
receipt of the entire administrative record from the Social
Security Administration (“SSA”), (Admin. R., Aug.
3, 2016, Docket No. 7), both parties filed motions for
summary judgment, (Pl.'s Mot. for Summ. J., Oct. 3, 2016,
Docket No. 9; Def.'s Mot. for Summ. J., Nov. 7, 2016,
Docket No. 12). As relevant to the objections before the
Court, the Commissioner moved for summary judgment on the
ground that the Court lacked jurisdiction because the SSA
never made a “final decision” as required by 42
U.S.C. § 405(g). The Administrative Law Judge
(“ALJ”) issued an Order of Dismissal after
Kaeding failed to appear at a scheduled hearing and, upon
Kaeding's request to vacate, found Kaeding had not
established good cause to vacate the Order of Dismissal.
(Admin. R. 6-7, 28-29, 45-46.)
thorough review of the administrative record, U.S. Magistrate
Judge Tony N. Leung issued a Report and Recommendation
(“R&R”) recommending that the Court grant the
Commissioner's motion for summary judgment and deny
Kaeding's motion for summary judgment on the ground that
the Court lacks jurisdiction. (R&R, June 19, 2017, Docket
No. 15.) The magistrate judge found that the Order of
Dismissal is not a “final decision” as required
by statute and, therefore, the Court lacks jurisdiction to
review the ALJ's decision. (Id. at 22-23.)
Kaeding timely filed objections to the R&R, disputing the
magistrate judge's finding that the Order of Dismissal is
not a “final decision.” The Court will overrule
Kaeding's objection and adopt the R&R.
STANDARD OF REVIEW
magistrate judge files an R&R, a party may file
“specific written objections to the proposed findings
and recommendations.” Fed.R.Civ.P. 72(b)(2);
accord D. Minn. LR 72.2(b)(1). “The objections
should specify the portions of the magistrate judge's
report and recommendation to which objections are made and
provide a basis for those objections.” Mayer v.
Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn.
Sept. 28, 2008). For dispositive motions, the Court reviews
de novo a “properly objected to” portion
of an R&R. Fed.R.Civ.P. 72(b)(3); accord D.
Minn. LR 72.2(b)(3). “Objections which are not specific
but merely repeat arguments presented to and considered by a
magistrate judge are not entitled to de novo review,
but rather are reviewed for clear error.”
Montgomery v. Compass Airlines, LLC, 98 F.Supp.3d
1012, 1017 (D. Minn. 2015).
OBJECTION TO R&R
objects to the magistrate judge's recommendation that the
Court lacks jurisdiction to review the ALJ's decision.
Absent an express waiver, sovereign immunity protects the
United States and its agents from suit. United States v.
Shaw, 309 U.S. 495, 500-01 (1940); United States v.
Kearns, 177 F.3d 706, 709 (8th Cir. 1999). A
district court lacks jurisdiction to hear a case against the
United States or its agents unless sovereign immunity has
been expressly waived. FDIC v. Meyer, 510 U.S. 471,
475 (1994) (“Absent a waiver, sovereign immunity
shields the Federal Government and its agencies from
suit.”); Kearns, 177 F.3d at 709.
statute, an individual can only obtain review “by a
civil action” of “any final
decision of the Commissioner of Social Security made
after a hearing to which he [or she] was a
party.” 42 U.S.C. § 405(g) (emphasis
added); see also Id. § 405(h) (“No
findings of fact or decision of the Commissioner of Social
Security shall be reviewed” except under section
405(g)). A waiver of sovereign immunity for review of a SSA
decision only occurs where “a claimant . . . presented
a claim for benefits to the [Commissioner] and exhausted the
administrative remedies prescribed by the
[Commissioner].” Schoolcraft v. Sullivan, 971 F.2d
81, 84-85 (8th Cir. 1992).
have consistently held a claimant fails to exhaust his or her
administrative remedies when an ALJ issues an Order of
Dismissal on procedural grounds, including a claimant's
failure to appear for a scheduled hearing. Haynes v.
Apfel, 205 F.3d 1346 (8thCir. 2000)
(unpublished) (“[T]he district court lacked
jurisdiction to review the ALJ's decision because
Haynes's hearing request was dismissed after he failed to
appear, and thus no hearing was ever held.”);
Brandyburg v. Sullivan, 959 F.2d 555, 562
(5th Cir. 1992) (“[I]t is the fact of
dismissal on procedural grounds at the administrative stage,
not the form of the Appeals Council's decision, that
deprives the district court of jurisdiction under section
an ALJ's decision that there is no good cause to vacate
an Order of Dismissal, and the Appeals Council's denial
of a request to review the good cause determination, does not
constitute a “final decision.” See Boock v.
Shalala, 48 F.3d 348, 351 (8th Cir. 1995)
(“[T]he Secretary's determination of no good cause
to extend the period for appeal . . . is . . . not subject to
judicial review under § 405(g).”); Smith v.
Heckler, 761 F.2d 516, 519 (8th Cir. 1985)
(holding the Appeals Council's dismissal of
plaintiff's untimely request for review was not a final
decision); Ogbe v. Astrue, No. 10-738, 2010 WL
6463875, at *4 (D. Minn. Dec. 27, 2010) (“Consideration
of the merits of good cause for untimely filing of a request
for review is not the type of agency decision that is
judicially reviewable.”), adopted by 2011 WL
1260094 (D. Minn. Apr. 5, 2011); Lyons v. Astrue,
No. 12-1, 2013 WL 64648, at *3 (E.D. Mo. Jan. 4, 2013)
(“[B]ecause Mr. Lyons's request for a hearing was
untimely and the [ALJ] issued an Order of Dismissal of Mr.
Lyons's request and the Appeals Council denied the
claimant's request for review of the Order of Dismissal,
the court does not have subject matter jurisdiction over this
the ALJ issued an Order of Dismissal when Kaeding failed to
appear at his administrative hearing. (Admin. R. 42-46.)
Kaeding filed a request to vacate the Order of Dismissal,
(id. at 28-30), and the ALJ determined Kaeding
failed to establish “a good cause reason to vacate the
dismissal order, ” (id. at 29). Kaeding filed
a request for reconsideration, (id. at 8-27), but
the ALJ again found Kaeding failed to establish good cause,
(id. at 6). Kaeding submitted a request to the
Appeals Council, who determined there was no reason under the
rules to review the ALJ's dismissal. (Id. at 3.)
Under this set of facts, the Commissioner never made a
“final decision” subject to review by this Court.
See Brandyburg, 959 F.2d at 562 (noting a district
court cannot review a “dismissal on procedural grounds
at the administrative stage . . . under ...